Kamla Devi and Others Vs. Baldev Raj and Others with - Court Judgment

LegalCrystal Citation

legalcrystal.com/1159604

Court

Punjab and Haryana High Court

Decided On

Jul-25-2014

Appellant

Kamla Devi and Others

Respondent

Baldev Raj and Others with

Excerpt:.....judge, (sr. divn.), panipat under order 1 rule 8 cpc seeking declaration to the effect that the suit property is a public park and the judgment and decree dated 6.5.2003 passed in civil suit no.155 of 1999 was null and void and not binding upon the plaintiffs and other inhabitants of ashok nagar, tehsil camp, panipat. permanent kumar ashwani 2014.08.05 11:47 i attest to the accuracy and integrity of this document high court chandigarh cm nos.3168-70-c of 2014 & 6464-c of 2014 in rsa no.536 of 2013 2 injunction was also sought restraining the defendants from carving out plots, changing the nature of the property in dispute or creating any interference therein. the said civil suit was filed against defendant no.1 baldev raj sharma (since deceased) now represented by his lrs, who are the.....

Judgment:

CM Nos.3168-70-C of 2014 & 6464-C of 2014 in RSA No.536 of 2013 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. CM Nos.3168-70-C of 2014 & 6464-C of 2014 in RSA No.536 of 2013 Date of decision:

3. Whether the judgment should be reported in the Digest?. Present: Mr. V.B. Aggarwal, Advocate for the applicants. --- RAKESH KUMAR GARG, J.

CM No.6464-C of 2014: The application is allowed subject to all just exceptions. Copy of the plaint is taken on record. CM No.3170-C of 2014 (O&M) Plaintiff-respondent no.1 Puran Singh along with others filed Civil Suit No.354 of 2008 in the Court of Civil Judge, (Sr. Divn.), Panipat under Order 1 Rule 8 CPC seeking declaration to the effect that the suit property is a public park and the judgment and decree dated 6.5.2003 passed in Civil Suit No.155 of 1999 was null and void and not binding upon the plaintiffs and other inhabitants of Ashok Nagar, Tehsil Camp, Panipat. Permanent Kumar Ashwani 2014.08.05 11:47 I attest to the accuracy and integrity of this document High Court Chandigarh CM Nos.3168-70-C of 2014 & 6464-C of 2014 in RSA No.536 of 2013 2 injunction was also sought restraining the defendants from carving out plots, changing the nature of the property in dispute or creating any interference therein. The said Civil Suit was filed against defendant no.1 Baldev Raj Sharma (since deceased) now represented by his LRs, who are the appellants in the instant appeal and defendant no.2- respondent no.4 Smt. Raj Kumari wife of Kharati Lal (predecessor- in-interest of the applicants). Municipal Council, Panipat was also arrayed as defendant no.3 in the instant suit. Defendant No.2- respondent No.4 Raj Kumari wife of Kharati Lal (predecessor-in- interest of the applicants) was proceeded against ex parte. In the instant suit, on the basis of pleadings of the parties, following issues were framed:-

“1. Whether the plaintiff is entitled for decree for declaration to the effect that the suit property is public park to this effect also that the judgment and decree dated 6.5.2003 passed in Civil Suit No.155/1999 are null and void?. OPP.

2. Whether the suit is not maintainable in the present form?. OPD.

3. Whether the suit of plaintiff is bad for mis-joinder and non-joinder of necessary parties?. OPD.

4. Whether the plaint is liable to be rejected under Order 7 Rule 7 CPC?. OPD5 Whether the suit is not properly valued?. OPD.

6. Whether the plaintiff has suppressed material and true facts from the Court and as such suit is liable to be dismissed?. OPD.

7. Relief.”

. Kumar Ashwani 2014.08.05 11:47 I attest to the accuracy and integrity of this document High Court Chandigarh CM Nos.3168-70-C of 2014 & 6464-C of 2014 in RSA No.536 of 2013 3 The trial Court under issue No.1 observed as under:- “In view of the above discussion, it is clear that the suit property is not proved a public park and plaintiffs have failed to establish their right or interest in the suit property hence they have got no right to challenge the decree dated 6.5.2003 which has been passed against Raj Kumari and others and Raj Kumari is recorded as owner in possession of the disputed khasra numbers in the jamabandi Ex.D- 9. Apart from this original plaintiffs are sons of original plaintiff Puran Singh and Puran Singh and others have withdrawn the suit on 28.10.2006, but sons of plaintiff Puran Singh i.e. present plaintiffs, have failed to lead any cogent or convincing evidence to prove the suit property as public park or to establish their right in the property. Hence the judgement / decree dated 6.5.2003 is not proved as illegal, null and void. Hence issue No.1 not proved and is accordingly decided against plaintiffs.”

. In view of the aforesaid findings, the suit was dismissed. Plaintiff-respondents no.1 to 3 filed an appeal against the aforesaid judgment and decree of the trial Court dated 20.9.2011. In this appeal, Raj Kumari wife of Kharati Lal who was arrayed as respondent no.2 was again proceeded against ex parte. The said appeal was decided on 9.11.2012 observing as under:- “In view of the observations made above, the findings recorded by the learned Civil Judge (Sr. Kumar Ashwani 2014.08.05 11:47 I attest to the accuracy and integrity of this document High Court Chandigarh CM Nos.3168-70-C of 2014 & 6464-C of 2014 in RSA No.536 of 2013 4 Division), Panipat on issue No.1 are partly reserved qua the decree in question dated 6.5.2003 passed in Civil Suit No.155 of 1999. It is held that the suit property is not proved to be a public park. It would vest in the original owner till it is acquired, developed or maintained by the Municipal Council, Panipat in accordance with the provisions of the Haryana Municipal Act and the Rules framed thereunder. Consequently the present appeal is allowed partly with costs. The suit stands decreed partly with costs and a decree for declaration is passed to the effect that the judgement and decree dated 6.5.2003 passed in Civil Suit No.155 of 1999 and mutation sanctioned on its basis are illegal, null and void and not binding upon the inhabitants of Ashok Nagar, Tehsil Camp, Panipat including the appellants. Decree sheet be prepared accordingly and file be consigned to the record room after due compliance.”

. Aggrieved from the aforesaid judgment and decree of the first Appellate Court, LRs of defendant no.1 (Baldev Raj Sharma) filed the instant appeal, wherein Raj Kumari wife of Kharati Lal was shown as respondent no.4. Respondents no.2 and 3 were represented whereas respondents no.1, 4 and 5 remained unserved. However, on 23.4.2013, on an application filed on behalf of the parties, this Court passed following order:- “Prayer has been made for pre-poning the hearing of the appeal, which is otherwise scheduled for 30.07.2013 on the ground that the parties have since arrived at an amicable settlement. It is also stated that Kumar Ashwani 2014.08.05 11:47 I attest to the accuracy and integrity of this document High Court Chandigarh CM Nos.3168-70-C of 2014 & 6464-C of 2014 in RSA No.536 of 2013 5 respondents No.1 to 3 are the only contesting respondents. Notice of the application to respondents No.1 to 3 for 20.05.2013. Respondents No.2 and 3 be served through their counsel Mr. Jitender Dhanda, Advocate. Service upon respondent No.1 be got effected by the applicants by taking dasti process.”

. As per the record of the appeal, respondents no.1 to 4 were represented by Mr. Rajesh Gaur, Advocate. At this stage, order dated 21.10.2013 be also noticed which reads thus:- “Learned counsel for the parties have urged that there are chances of compromise between the parties. So this file be sent to Mediation and Conciliation Centre of this Court. In view of the above, file be sent to Mediation and Conciliation Centre of this Court and parties through their advocates are directed to present in person before the said Forum on 06.11.2013.”

. On the basis of the aforesaid order, the matter was listed before the Mediation and Conciliation Centre of this Court, wherein following compromise was placed on record:- “BEFORE THE HON'BLE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Smt. Kamla Rani and others Vs. Puran Singh others Compromise Kumar Ashwani 2014.08.05 11:47 I attest to the accuracy and integrity of this document High Court Chandigarh CM Nos.3168-70-C of 2014 & 6464-C of 2014 in RSA No.536 of 2013 6 Sir, That parties to the RSA submits as under:- 1- That the above titled RSA has been filed by the appellants against the respondents aggrieved from the judgment and decree dated 9.11.2012 passed by the court of Sh. Parveen Gupta, Ld. ADJ, Panipat in civil appeal No.36 of 2012 titled Puran Singh etc. Vs. Baldev Raj Sharma (deceased) represented by his L.Rs and others. 2- That though respondents/plaintiffs appeal has been partly allowed by the Ld. ADJ Panipat vide judgment and decree dated 9.11.2012, but there is concurrent of finding that the suit property is neither a public property nor a public park and the same is owned and possessed by the private owner. The parties to the RSA has now come on terms with the intervention of the respectable of the localities, as the respondents/plaintiffs have been satisfied that the suit property is neither public property nor public park and the same is owned and possessed by the present appellants, the legal heirs of Sh. Baldev Raj Sharma and no other person has any right, title or interest whatsoever in the same. Thus, in presence of respectable of the locality, the respondents admit the ownership and possession of present appellants and the Kumar Ashwani 2014.08.05 11:47 I attest to the accuracy and integrity of this document High Court Chandigarh CM Nos.3168-70-C of 2014 & 6464-C of 2014 in RSA No.536 of 2013 7 appellants have no objection, if present appeal of the appellants is accepted or the appellants are allowed to withdraw their suit. The compromise is in benefit of both the parties, as both the parties will be saved from unnecessary litigation and unnecessary expenses in future. It is, therefore, requested that in view of the compromise arrived between the parties either the appellant's appeal be allowed by holding the judgment and decree dated 20.9.2011 passed by the court of Dr. Sunita Grover, Ld. C.J.

(S.D.) Panipat in civil suit No 354 of 2008 as legal and valid one or the respondents/plaintiffs may please be allowed to withdraw their civil suit No.354 of 2008 titled Puran Singh and others Vs. Baldev Raj and others with leaving the parties bearing their own costs for the sake of justice and equity. Appellants/defendants Respondents/plaintiffs Smt. Kamla Rani Wd/o Puran Singh S/o Sh. Sh. Baldev Raj, 2- Karam Singh, 2- Upender Sharma, 3- Kuldeep Singh, 3- Pushpender Sharma, 3- Surender Singh S/o Sh. Yogesh Sharma Ss/o Sh. Puran Singh, R/o 30, Baldev Raj Sharma, all Ashok Nagar, Panipat residents of 17, Ashok Nagar, Tehsil Camp, Sd/- Sd/- Sd/-“ Panipat Sd/- Sd/- Sd/- Sd/- Sd/- Sd/- Kumar Ashwani 2014.08.05 11:47 I attest to the accuracy and integrity of this document High Court Chandigarh CM Nos.3168-70-C of 2014 & 6464-C of 2014 in RSA No.536 of 2013 8 The said compromise has been shown to be signed by the appellants as well as respondents no.1 to 3. On the basis of aforesaid compromise, the Mediator passed following order on 6.11.2013:- “This mediation case No.___ of 2013 is arising out of RSA No.536 of 2013 “Kamla Devi & ors. Vs. Puran Singh & ors.”

. The parties have compromised the matter in the following manner:- 1. That the respondents/plaintiffs have satisfied themselves that the suit property is neither public property nor public park and the same is owned and possessed by the present appellants i.e. legal heirs of Sh. Baldev Raj Sharma.

2. That the parties have also reached a compromise that no other person has any right, title or interest whatsoever in the suit property and therefore, respondents admitted the ownership and possession of the present appellants in the said property. It is also clarified that the respondents/plaintiffs have no right legal or otherwise on the suit property.

3. That the respondents/plaintiffs have no objection if the appeal of the appellant is accepted or in the alternative respondents/plaintiffs are allowed to withdraw their suit No.354 of 2008 whereby the judgement and decree dated 20.09.2011 was passed by the Court of Dr. Sunita Grover, Senior Division, Panipat in suit titled as Puran Singh & ors. Vs. Baldev Raj.

4. This compromise has been reached between the parties without any pressure and both the parties have agreed to abide by the terms and conditions of the Kumar Ashwani 2014.08.05 11:47 I attest to the accuracy and integrity of this document High Court Chandigarh CM Nos.3168-70-C of 2014 & 6464-C of 2014 in RSA No.536 of 2013 9 agreement. Both the parties shall be bound with the terms and conditions of this compromise.

5. It has been further decided between the parties that in case of necessity, both the parties shall be free to present the copy of the above compromise before any authority or Court if the same is required to witness the execution of the compromise or to settle any pending controversy between the parties.

6. A signed copy of this agreement is given to both the parties.

7. It is made clear that both the parties shall not back out from the settlement, they shall be responsible for the consequences if they do so. It is also made clear that the parties shall bear their loss in the situation of backing out from this settlement.

8. The parties have gone through the contents and the same have been explained to the parties and after admitting the same as correct, have put their respective signatures. Sh. Upender Sharma (on behalf of all the appellants) ___Sd/-__ Mr. Bhupender Singh-Counsel for the appellants ___Sd/-__ Sh.Puran Singh-respondent No.1 ___Sd/-__ Sh. Kuldeep Singh-respondent No.2 ___Sd/-__ Sh. Surender Singh-respondent No.3 ___Sd/-__ Mr. Rajesh Gaur-Counsel for the respondents ___Sd/- 06.11.2013 Sd/- (Mahesh Dheer) Sonia Mediator”. The Director, Mediation and Conciliation Centre placed the aforesaid report of the Mediator before the Chairman, Mediation and Conciliation Centre of this Court (Mahesh Kumar Ashwani 2014.08.05 11:47 I attest to the accuracy and integrity of this document High Court Chandigarh CM Nos.3168-70-C of 2014 & 6464-C of 2014 in RSA No.536 of 2013 10 Grover, J.) on 7.11.2013 which was duly approved. Thereafter, this Court passed following judgment/decree on the basis of the aforesaid settlement on 20.12.2013:- “Plaintiff-respondents filed the instant suit seeking following relief:- “Suit U/O1Rule 8 CPC for declaration to the effect that suit property is a public park and to this effect also that the judgment and decree dated 6.5.2003 passed in Civil Suit No.155/1999 are null and void, ineffective, inoperative and not binding upon the plaintiffs as well as upon all inhabitants of Ashok Nagar, Tehsil Camp, Panipat with the consequential relief of permanent injunction.”

. The suit was dismissed vide judgment and decree dated 20.9.2011 by the Civil Judge (Sr. Division), Panipat. Aggrieved from the aforesaid judgment and decree of the trial Court, the plaintiff- respondents preferred an appeal before the first Appellate Court which was partly allowed in the following terms:- “It is ordered that present appeal is allowed partly with costs. The suit stands decreed partly with costs and a decree for declaration is passed to the effect that the judgment and decree dated 6.5.2003 passed in Civil Suit No.155 of 1999 and mutation sanctioned on its basis are illegal, null and void and not binding upon the inhabitants of Ashok Nagar, Tehsil Camp, Panipat including the appellants.”

. Kumar Ashwani 2014.08.05 11:47 I attest to the accuracy and integrity of this document High Court Chandigarh CM Nos.3168-70-C of 2014 & 6464-C of 2014 in RSA No.536 of 2013 11 Still aggrieved from the aforesaid judgment and decree of the first Appellate Court, the defendants have filed the instant appeal. In view of submissions made by counsel for the parties, vide order dated 21.10.2013, the matter was sent to the Mediation and conciliation Centre of this Court for amicable settlement of the dispute between the parties. As per report dated 6.11.2013 of the Mediator, Mediation and conciliation Centre, both the parties have settled their dispute by way of an amicable settlement. The aforesaid amicable settlement has taken place on the basis of a compromise which has also been placed on record of this appeal. Counsel for the parties are ad idem that the instant appeal be disposed of in terms of the aforesaid settlement dated 6.11.2013. In view thereof, this appeal is disposed of in terms of the amicable settlement dated 6.11.2013, as reported by the Mediator, Mediation and conciliation Centre of this Court. The parties shall be bound by the aforesaid settlement which shall form part of the decree.”

. It may further be noticed that in the instant suit (Civil Suit No.354 of 2008), plaintiffs have sought a declaration to the effect that the suit property is a public park and judgment and decree dated 6.5.2003 passed in Civil Suit No.155 of 1999 and mutation sanctioned on its basis was illegal, null and void and not binding upon the inhabitants of Ashok Nagar, Tehsil Camp, Kumar Ashwani 2014.08.05 11:47 I attest to the accuracy and integrity of this document High Court Chandigarh CM Nos.3168-70-C of 2014 & 6464-C of 2014 in RSA No.536 of 2013 12 Panipat. LRs. of defendant no.1, who are the appellants before this Court, have compromised with plaintiff-respondents and according to the aforesaid compromise, the plaintiff-respondents have no objection if the appeal filed on behalf of LRs of Shri Baldev Raj Sharma, defendant no.1, is accepted, setting aside the judgment and decree of the lower Appellate Court, resulting into dismissal of the suit i.e. Civil Suit No.354 of 2008 or to allow the plaintiff-respondents to withdraw the instant suit. Thus, the net result of the aforesaid compromise, according to this Court, is that the suit filed on behalf of the plaintiff-respondents against Shri Baldev Raj Sharma and others, defendants, stood dismissed. The applicants who claims themselves to be the LRs of Raj Kumari (defendant no.2), now respondent no.4, have moved the instant application i.e. CM No.3170-C of 2014 for setting aside the judgment of this Court dated 20.12.2013, as noticed above, alleging that the said compromise decree was a result of fraud played by the appellants. Along with this application, applicants have also filed an application i.e. CM No.3169-C of 2014 to implead them as LRs of respondent no.4 Raj Kumari. Applicants have also prayed for restraining the parties to raise construction over the plot and to maintain status quo vide CM no.3168-C of 2014. According to the counsel for the applicants, it has been wrongly shown that Shri Rajesh Gaur, Advocate represented respondent no.4 Raj Kumari, as said Raj Kumari had died on Kumar Ashwani 2014.08.05 11:47 I attest to the accuracy and integrity of this document High Court Chandigarh CM Nos.3168-70-C of 2014 & 6464-C of 2014 in RSA No.536 of 2013 13 25.2.1998 i.e. even before the filing of the suit and thus, no one had authorized Shri Rajesh Gaur, Advocate to represent her. It has been further stated that even said Raj Kumari was never served before the trial Court as well as the lower Appellate Court and was proceeded against ex parte on the basis of false reports of the Process Servers as it is apparent that she had died much prior. It has been further submitted that according to the judgment of Additional District Judge, the suit property has not been proved to be a public park and it would vest with the original owner till it is acquired or developed or maintained by the Municipal Council, Panipat and since defendant no.2-respondent no.4 was the original owner of the suit property, no compromise can be effected in her absence. I have heard learned counsel for the applicants and perused the judgments and decrees of the Courts below as well as judgment dated 20.12.2013 of this Court as also various zimni orders. At this stage, it may be noticed that Baldev Raj Sharma (defendant No.1 in Civil Suit No.354 of 2008) had filed Civil Suit No.155 of 1999 against Smt. Raj Kumari (defendant No.2 in Civil Suit No.354 of 2008) and two others for declaration along with consequential relief of permanent injunction setting up his title over the suit land on the plea of adverse possession and also on the basis of an agreement to sell dated 9.3.1967 executed by the aforesaid Raj Kumari in favour of Shri Baldev Raj Sharma. Both Kumar Ashwani 2014.08.05 11:47 I attest to the accuracy and integrity of this document High Court Chandigarh CM Nos.3168-70-C of 2014 & 6464-C of 2014 in RSA No.536 of 2013 14 the issues were held in favour of the aforesaid plaintiff and thus, Civil Suit No.155 of 1999 was decreed in the following terms:- “As a sequal to my aforesaid discussion, the suit of the plaintiff succeeds and is hereby decreed alongwith cost to the effect that plaintiff is owner in possession of the property marked by letters ABCD shown with red colour in the attached site plan Ex.P2 and same has ripened into ownership by adverse possession. It is further decreed that defendants are restrained from interfering in any way in the peaceful possession of plaintiff over the suit property. Decree sheet be prepared accordingly and the file be consigned to the record room after due compliance.”

. It is not in dispute that the aforesaid suit of Shri Baldev Raj Sharma has become final against defendant No.2-respondent no.4 Smt. Raj Kumari. Thus, no benefit can enure to the LRs of defendant no.2/applicants even if the judgment and decree of the lower Appellate Court (which has been set aside because of the compromise) is allowed to stand, as applicants who are LRs of Raj Kumari, are bound by the judgment and decree dated 6.5.2003 passed in Civil Suit No.155 of 1999 qua Baldev Raj Sharma, defendant no.1 and the said decree has never been challenged by the said defendant-LRs. Moreover, in the instant suit, which was filed by the plaintiff-respondents against Baldev Raj Sharma and others, wherein it has been concurrently held by both the Courts that the suit land belongs to the original owner and is not a public park, no finding has been recorded to the effect that it vests with Kumar Ashwani 2014.08.05 11:47 I attest to the accuracy and integrity of this document High Court Chandigarh CM Nos.3168-70-C of 2014 & 6464-C of 2014 in RSA No.536 of 2013 15 defendant no.2. Moreover, the said compromise decree shall bind the parties to the compromise only and the net effect of the compromise is dismissal of the suit of plaintiff-respondents and possibly against such a compromise decree, LRs of defendant no.2 cannot raise any objection. In view thereof, this application is without any merit and has been filed only to frustrate the compromise decree. Thus, the application is dismissed with costs which are assessed at Rs.10,000/-. Let the costs be deposited with the High Court Legal Services Committee within one month from today. July 25, 2014 [RAKESH KUMAR GARG]. ak JUDGE Kumar Ashwani 2014.08.05 11:47 I attest to the accuracy and integrity of this document High Court Chandigarh